KIDNAPPED BY THE USA

Faizan Mustafa
The Statesman, 9 December

WE may find it morally repugnant that a nation even in 21st century may legally kidnap citizens of other countries for trial even for ordinary crimes. Yet this is the harsh reality in America which no longer attaches much significance to morality, ethics, sovereignty of other nations and above all the rights of the accused.

The United States of America, the so-called “most civilized country in the world” and the self-appointed champion of human rights throughout the globe has now openly admitted in a British court that it can “kidnap” citizens of any country in the world, including British citizens, if they are wanted for crimes in the United States.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has not held it illegal. This may shock the conscience of traditional criminal law lawyers. The American government’s view emerged during a hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher, and his wife Beatrice. The Tollmans, who control the Red Carnation hotel group and are residents of London, are wanted in America for bank fraud and tax evasion. They have been fighting extradition through the British courts.

The admission will alarm the entire business community in Britain after the case of the so-called NatWest Three, the bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers of British Airways and BAE Systems, are presently under investigation by the US authorities and could face criminal charges in America.

Prior to this explicit and candid admission, it was generally assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects.

It is now official that America viewed extradition as just one way of getting foreign suspects back to face trial. Rendition, or kidnapping, dates back to the 19th century bounty hunting. The United States continues to believe it is still legitimate and perfectly legal to kidnap an accused from any part in the world.

The American government believes that extradition requests, whether based on treaties or customary international law, are quite often cumbersome and ineffective. It feels that several countries are often either unable or unwilling to arrest and extradite indicted criminals. The existence of such non-cooperative states effectively creates safe havens for international fugitives.

The USA tries to justify such abductions on the basis of earlier cases. On May 11, 1960, Israeli agents abducted Adolf Eichmann, a Nazi war criminal notorious for his role in Hitler's 'final solution', from Argentina and flew him to Israel. In February 1963, Argoud, a leader of a military revolt against President De Gaulle was kidnapped from Munich. In 1964, Egyptian agents tried to kidnap Mordecai Luk, an alleged double agent for Egypt and Israel, by shipping him in a trunk to Egypt.

Kidnapping of fugitives is thus a long-standing practice which the United States follows in preference to extradition. On June 21, 1989, the Department of Justice ruled that the President has constitutional authority to direct the Federal Bureau of Investigation to abduct a fugitive from a foreign country even if those actions violate international law. In 1989, American military forces abducted General Manuel Noriega from Panama to face drug-dealing charges. The US DEA agents offered former Mexican police officers a $50,000 reward to abduct Dr Humberto Alvarez-Machain who was wanted by the United States law enforcement for helping drug lords torture a DEA agent. On April 3, 1990, the former Mexican police officers abducted Dr Machain and delivered him to the United States. On July 15, 1993, in Nigeria, FBI agents abducted Omar Mohammed Ali Rezaq, a Palestinian, who was wanted for killing an American and injuring another during the hijacking of an Egyptian airline.

This policy has raised a series of moral, judicial, and political issues, provoking investigations by the European Union investigations. A June 2006 report from the Council of Europe estimated that 100 people had been kidnapped by the CIA on EU territory and rendered to other countries, often after having transited through secret detention centers (“black sites”) used by the CIA in cooperation with other governments. According to the European Parliament report of February 2007, CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of Article 3 of the United Nations Convention Against Torture. A large majority of the European Union Parliament endorsed the report’s conclusion that many member states tolerated illegal actions of the CIA and criticised several European governments and intelligence agencies for their unwillingness to cooperate with the investigation.

The the kidnapping or abduction of an individual by US agents within the jurisdiction of other sovereign states and without their consent violates the sovereignty and territorial integrity of such states. Moreover, a state-sponsored abduction is also contrary to the UN Charter, which prohibits one state from using force against another except in self-defence.

In the infamous case of Alvarez-Machain, on the basis of which the recent assertion on the right to kidnap was made in the British court, the unfortunate doctor (accused) was spotted in the kitchen of an isolated Mexican ranch, washing his hypodermic needles. In the living room, Enrique Camarena, an American drug enforcement agent, was being tortured to death by the traffickers from the Gaudalaraja Drug Cartel in 1985. The doctor’s needles, when examined, contained traces of pain-reliever. Put two and two together, said the American authorities: the doctor was plainly injecting the man tokeep him alive and prolong his agony.

On that hunch, was Dr Humberto Alvarez ~ Machain kidnapped from his surgery centre in Gaudalaraja five years later. The doctor was brought to Texas and the Drug Enforcement Administration paid $ 20,000 plus expenses to some of those involved in the kidnapping.

Two lower federal courts held that the abduction of the accused doctors violated international law, and that since the treaty is the supreme law of the land, its violation vitiated the jurisdiction of the court. However, the apex court upheld the jurisdiction of the US Court to try the accused even though his presence in the US was the result of abduction.

It is shocking that the USA is using legal rendition as a method of dealing with foreign defendants. Extraordinary rendition is a wholly extra-legal process that differs in its nature and usage as a tool in the America- led so called “war on terror”. This new method of rendition includes a form where suspects are taken into US custody but delivered to a third-party state, often without ever being on American soil, and without involving the rendering country's judiciary. The CIA was granted such a permission to use rendition in a presidential directive signed by Clinton in 1995, and the practice has been expanded considerably since 9/11.

The first well-known rendition case involved the Achille Lauro hijackers in 1985. While in international air space they were forced by the United States navy fighter planes to land at the Naval Air Station Sigonella, an Italian military base in Sicily used by NATO. This was an attempt to place them within the judicial reach of US government for transport to and trial in the United States.

Since the start of the “war on terror”, the United States has rendered hundreds of people suspected by it of being terrorists - or of aiding and abetting terrorist organisations ~ to third-party states such as Egypt, Jordan, Syria, Morocco, and Uzbekistan. Such “ghost detainees” are kept outside judicial oversight, often without ever entering United States’ territory, and may or may not ultimately be devolved to the custody of the United States.

There no doubt in the minds of civil libertians that such a procedure is nothing but “torture by proxy”. As a matter of fact, the CIA is rendering suspects to other countries in order to avoid US laws that still offer scope for due process and prohibit torture. This practice has rightly been termed as “torture flights”.

The United States, however, defends this abhorrent practice on the ground that culturally-informed and native-language interrogations are more successful in gaining information from suspects. In a number of cases, this procedure was used on innocent people. For instance, Khalid El-Masri and Maher Arar on whom the procedure was applied were later found to be innocent. The USA merely termed such instances as “erroneous rendition.”

Though one may appreciate America’s concerns in apprehending and punishing the guilty particularly those who are involved in the terrorist activities, yet the kidnapping of those accused of ordinary crimes has no moral, ethical or legal justification and clearly reflects the big brotherly attitude. This makes a mockery of the most fundamental principle of international law and the UN Charter ~ sovereign equality of all states. Even for such serious offences like war crimes, genocide or terrorist activities, it would be a better proposition if the UN Security Council considers creation of a permanent international police force as opposed to relying on private international bounty-hunters or kidnapping by one powerful state.